Is the UK Attorney General’s legal advice regarding the backstop correct?
James Hope, partner and head of Vinge’s Dispute Resolution practice group in Stockholm as well as a Solicitor Advocate, provides an analysis of the latest turn of events concerning Brexit in an article written in English. What implications are there for the withdrawal agreement that the Attorney General’s advice was wrong?
Brexit: Is the UK Attorney General’s legal advice regarding the backstop correct?
There is much focus at present on Brexit, and in particular on the ”backstop”, i.e. the negotiated position regarding Northern Ireland that will continue to apply for a temporary period unless and until a permanent future relationship between the UK and the EU has been negotiated.
In early December 2018, the UK government was forced to publish its Attorney General’s legal advice on the legal effect of the Protocol to the Withdrawal Agreement on Ireland and Northern Ireland (the “Protocol”). The key legal issue as identified by the Attorney General is that, even though the Protocol is clearly intended to be temporary and even though the parties have a duty to use best endeavours to negotiate a superseding agreement in good faith, the provisions of the Protocol will continue to subsist “unless and until they are superseded, in whole in part, by a subsequent agreement”.
The Attorney General’s conclusion, which has caused considerable consternation among UK MPs, is that the negotiations could go on indefinitely, and that this remains the case “even if [the] parties are still negotiating many years later, and even if the parties believe that talks have clearly broken down and there is no prospect of a future relationship agreement”. Thus, the Attorney General concludes,”[i]n the absence of a right of termination, there is a legal risk that the United Kingdom might become subject to protracted and repeating rounds of negotiations”.
One of the key parts of the Attorney General’s advice is at paragraph 29 of his opinion:
“While the duties to act in good faith and in particular to use best endeavours in negotiating a new agreement are forceful and precise, they could not require the parties to a negotiation to set aside their fundamental interests, although they do require the parties to consider proposed modifications of the means by which they might be secured. For the EU, it can be assumed that avoiding a hard border on the island of Ireland and protecting the 1998 agreement in all its dimensions are fundamental interests and that the arrangements set out in the Protocol achieve those objectives. That does not rule out other means of securing them, and it is possible that if the EU peremptorily refused to entertain any alternative proposal for safeguarding them put forward by the UK, clearly demonstrating bad faith and a breach of the duty to use best endeavours, it could be challenged. But such conduct on the part of the EU would be highly unlikely; all they would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to bad faith or failure to use best endeavours, which would require clear and convincing evidence of improper motive and wilful intransigence.” (Emphasis added)
Is the Attorney General correct? Is there really so little substance in the duty to use best endeavours to negotiate in good faith?
At the risk of over‑simplifying the complex issues that this question gives rise to, we would like to offer five observations:
1. As an English lawyer, the Attorney General may have been influenced by the English law position that a duty to negotiate in good faith for an unspecified period is not enforceable (see Walford v Miles  2 AC 128). However, although English law does not generally enforce a “bare” duty to negotiate in good faith, in Petromec Inc v Petroleo Brasileiro SA  EWCA Civ 891 the Court of Appeal decided that an obligation to negotiate in good faith can be enforced where that obligation is an express obligation that is part of a contractually binding agreement, and where the matter to be negotiated is capable of objective assessment by a third party. Moreover, English law enforces obligations to use best endeavours, provided that the object intended to be procured is sufficiently certain and ascertainable. In Jet2.com Ltd v Blackpool Airport Ltd  EWCA Civ 417, the majority of the Court of Appeal rejected the submission that the obligation to use best endeavours would never require the party in question to act contrary to its own commercial interests, and it was noted that an obligation to use best endeavours “does not mean second best endeavours”.
2. The Principles of European Contract Law (PECL) go rather further than English law in enforcing obligations to negotiate in good faith. Article 1:201 provides that “[e]ach party must act in accordance with good faith and fair dealing” and Article 1:202 provides that “[e]ach party owes to the other a duty to co‑operate in order to give full effect to the contract”. In other words, the parties have mutual duties of co‑operation and loyalty. Moreover, although “[a] party is free to negotiate and is not liable for failure to reach an agreement”, “a party who has negotiated or broken off negotiations contrary to good faith and fair dealing is liable for the losses caused to the other party” (Article 2:301).
3. As the Attorney General observes at paragraph 3 of his opinion, the Protocol is part of an international agreement that is binding on the UK and the EU in international law and must be performed by them in good faith. Moreover, the Attorney General observes that the Protocol is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context and in the light of its object and purpose (this is, of course, a reference to Article 31 of the Vienna Convention on the Law of Treaties, although the Attorney General does not expressly say so). What is the ordinary meaning to be given to the obligation to use best endeavours to negotiate in good faith? Is the ordinary meaning closer to the English law position or the PECL position?
4. EU law imposes obligations of “sincere or loyal cooperation” on member states and EU institutions (see in particular Article 4(3) TEU and related case law). Article 5 of the Withdrawal Agreement, entitled “Good faith”, also provides for an express contractual duty of co‑operation (and it is worth noting in this context that, pursuant to Article 182 of the Withdrawal Agreement, the Protocol forms an integral part of that Agreement). Article 5 provides as follows:
“The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement. They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement. This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.”
5. The principle of sincere (or loyal) cooperation is an autonomous concept of EU law and there is plenty of CJEU case law on the meaning of this principle. For example, it is clear that the principle includes a duty involving specific procedural obligations that must be observed. If the objective of the UK government is to find a legal assurance that the EU is committed to finding an alternative to the backstop as set out in the withdrawal agreement, there is scope to use Article 5(3) of the draft withdrawal agreement and the principle of sincere cooperation (alongside existing international law obligations) for this purpose. Moreover, since it is an EU law obligation, it may well be that the EU is more sympathetic towards an assurance (clarification) of this kind.
To revert to the question that the Attorney General asked himself at paragraph 29 of his opinion, if the UK subsequently put forward a reasonable and fully‑workable alternative proposal during good faith negotiations for avoiding a hard border on the island of Ireland and protecting the 1998 agreement in all its dimensions, would it be sufficient for the EU merely to consider the UK’s proposal in order to comply with its obligation to use best endeavours to negotiate in good faith?
The Attorney General suggests that that is all that would be required in order to comply with the obligation of good faith. However, in light of the observations above, I suggest that considerably more would be required. The EU would have a duty to co‑operate sincerely in order to fulfil the objectives of the Protocol, including the express objective that the provisions of the Protocol are intended to apply only temporarily and that the EU and the UK have expressly agreed to use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes the Protocol in whole or in part (see Articles 1(4) and 2(1) of the Protocol).
In short, if the UK’s proposal was reasonable and fully‑workable, the EU would need to have very good reasons for refusing to accept it. Equally, if the EU put forward a reasonable and fully‑workable alternative, then the UK would need to have very good reasons for refusing to accept that alternative.
It has been suggested that the UK Prime Minister should go back to Brussels in order to “negotiate a better deal” with regard to the backstop. It would seem highly unlikely that such a course of action is open to the Prime Minister at this stage (one EU diplomat has apparently suggested that the discussions would be limited to changing the font in which the Withdrawal Agreement has been written, and EU leaders have been quick to stress that there cannot be any further negotiations).
However, it is surely still possible for the UK and the EU to work together over the coming weeks in order to clarify the meaning of what they have negotiated. We suggest that it would be helpful to have a joint memorandum from both parties stating, inter alia, that there is a duty to negotiate in good faith for a specified period (i.e. until 31 December 2020), that there are specific matters to be negotiated that are reasonably certain and capable of objective assessment by a third party, that both parties have mutual obligations to co‑operate sincerely with each other in order to negotiate a permanent solution by 31 December 2020, and that such mutual obligations are intended to be legally enforceable. This might not satisfy those who want the UK to be able to withdraw unilaterally, but it would help to provide considerably greater legal certainty than has been suggested by the Attorney General.
In summary, the Attorney General’s conclusions in his legal advice appear to be incorrect. If so, it would be a shame if the UK Parliament rejects the Withdrawal Agreement on the basis, in part, of such incorrect legal advice.